Brodrick Michael James v. State ( 2015 )

ACCEPTED
01-15-00102-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/9/2015 10:28:24 AM
CHRISTOPHER PRINE
CLERK
No 01-15-00102-CR
FILED IN
IN THE 1st COURT OF APPEALS
HOUSTON, TEXAS
COURT OF APPEALS 7/9/2015 10:28:24 AM
CHRISTOPHER A. PRINE
FIRST JUDICIAL DISTRICT Clerk
HOUSTON, TEXAS
BRODRICK MICHAEL JAMES,
Appellant
V.
STATE OF TEXAS,
Appellee
ON APPEAL IN CAUSE NO. 74207
149TH JUDICIAL DISTRICT COURT, BRAZORIA COUNTY, TEXAS
HONORABLE TERRI HOLDER, JUDGE PRESIDING
BRIEF FOR THE APPELLANT
KEITH G. ALLEN
Law Offices of Keith G. Allen, PLLC
2360 CR 94, Suite 106
Pearland, TX 77584
Telephone: 832-230-0075
Fax: 832-413-5896
Keith@KGAllenLaw.com
Bar No. 01043550
ATTORNEY FOR APPELLANT Oral Argument Is Requested
DATE: July 9, 2015
1
No 01-15-00102-CR
IN THE
149TH DISTRICT COURT § COURT OF APPEALS
OF § FIRST DISTRICT
BRAZORIA COUNTY, TEXAS § HOUSTON, TEXAS
BRODRICK MICHAEL JAMES,
Appellant
V.
STATE OF TEXAS,
Appellee
BRIEF FOR THE APPELLANT
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
BRODRICK MICHAEL JAMES, the defendant in Cause No. 74207 in the
149TH Judicial District Court of Brazoria County, Texas, respectfully submits this
brief and respectfully shows the court the following:
2
SUBJECT INDEX
Parties to the Case ……………………………………...………………………… 5
Index of Authorities ……….…………..…………………..……………………… 6
Statement of the Case ……………………..…….………….. …………………… 8
Statement of Facts …………………………..………….………………………… 8
Summary of the Argument ………………………………..…………………….. 14
Appellant’s Point of Error One …………………..……………………………… 14
The trial court committed error by limiting the Appellant’s right to appeal
to the punishment phase of the trial.
Argument ............................................................................................................... 15
Appellant’s Point of Error Two …………………..……………………………… 16
The trial court committed error by denying Appellant his right to counsel
of his choosing at trial.
Argument ............................................................................................................... 17
Appellant’s Point of Error Three …………………..………….………………… 18
The trial court committed error by failing to sustain Appellant’s objection
to the admission of an audio recording and by considering the audio recording
as evidence against the Appellant at the punishment phase of the trial.
Argument ............................................................................................................... 18
Appellant’s Point of Error Four …………………..………….………..………… 24
3
Appellant did not receive effective assistance of counsel at trial.
Argument ............................................................................................................... 24
Conclusion ............................................................................................................. 26
Prayer …………………………………………..……………………………...… 27
Certificate of Compliance ………………………..……………………………… 27
Certificate of Service ……………………………..……………………………... 27
4
PARTIES TO THE CASE
APPELLANT: BRODRICK MICHAEL JAMES
Attorney for Appellant at Trial:
Name: Faye Gordon
Address: 201 E. Myrtle #106
Angleton, TX 77515
Telephone: 979-849-3330
Email: Faye@FayeGordonLaw.com
Attorney for Appellant on Appeal:
Name: Keith G. Allen
Address: 2360 CR 94, Suite 106
Pearland, TX 77584
Telephone: 832-230-0075
Fax: 832-413-5896
Email: Keith@KGAllenLaw.com
APPELLEE: STATE OF TEXAS
Attorney for the State at Trial:
Name: Brian Hrach and Rick Martin,
Assistant Criminal District Attorneys
Address: Brazoria County Courthouse
111 E. Locust, Room 408A
Angleton, TX 77515
Telephone: 979-864-1230
Fax: 979-864-1525
Attorney for the State on Appeal:
Name: Jeri Yenne, Brazoria County Criminal District Attorney
Address: Brazoria County Courthouse
111 E. Locust, Room 408A
Angleton, TX 77515
Telephone: 979-864-1230
Fax: 979-864-1525
5
INDEX OF AUTHORITIES
Cases
Angleton v. State, 971 S.W.2d 65 (Tex.Crim.App. 1998) ……..…..….….… 20, 21
Banargent v. State, 228 S.W.3d 393
(Tex.App-Houston[14thDist.]2007, pet. ref’d.) ……………...…..……... 21
Billings v. Atkinson, 489 S.W.2d 858 (Tex.S.Ct. 1973) ………………………... 22
Blanco v. State, 18 S.W.3d 218 (Tex.Crim.App. 2000) …….………………..… 16
Cuyler v. Sullivan, 446 U.S. 335 (1980) …………………..…….…….……….. 25
Ex parte Broadway, 301 S.W.3d 694 (Tex.Crim.App 2009) ….……….………. 16
Ex parte Delaney, 207 S.W.3d 794 (Tex.Crim.App. 2006) …….……....……… 16
Ex parte Felton, 815 S.W.2d 733 (Tex.Crim.App. 1991) …………….……..… 25
Gonzales v. State, 117 S.W.3d 831 (Tex.Crim.App. 2003) ………....……..….... 17
Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App. 1997) ………..…….....…….. 20
Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986) …………......……. 26
Hines v. State, 383 S.W.3d 615 (Tex.App.-San Antonio 2012, pet ref’d.) ..…… 21
Jones v. State, 926 S.W.2d 386 (Tex.App.-Fort Worth 1996, pet. ref’d.) .......… 18
Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967) ………..…….……… 23
McMann v. Richardson, 397 U.S. 759 (1970) …………………..…..………… 25
Monreal v. State, 99 S.W.3d 615 (Tex.Crim.App. 2003) ………………....……. 16
Powell v. Alabama, 287 U.S. 45 (1932) …………………………..…..………. 24
6
Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421 (1978) …………..…..….……… 23
Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App. 1993) ……..………….. 22
Robinson v. State, 16 S.W.3d 808 (Tex.Crim.App. 2000) ………..………..… 25
Sims v. State, 326 S.W.3d 707 (Tex.App.-Texarkana 2010, pet. struck) ……… 16
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577 (1979) ……………….....….. 23
Strickland v. Washington, 466 U.S. 668 (1984) …………………….….…..… 25
United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct 2557 (2006) ….…... 17
Villarreal v. State, 935 S.W.2d 134 (Tex.Crim.App. 1996) ….………….….… 23
Weatherred v. State, 15 S.W.3d 540 (Tex.Crim.App. 2000) ……….….……… 20
Constitutions
U.S. Const. Amend. IV ……………………………………….………………. 22
U.S Const. Amends. VI and XIV ……………………………..……………… 24
Tex. Const. art. I, sec 10 ……………………………………………………… 23
Statutes and Rules
Tex. Code Crim. Proc. art. 1.14 ……………………..…..…………………….. 15
Tex. Code Crim. Proc. art. 18.02 ……………………..……………………….. 22
Tex. Code Crim. Proc. art. 44.02 ……………..………..……………………… 15
Tex. Penal Code sec. 16.02 …………………………………………………… 22
Tex. R. Evid. 901 ……………………………………….…………………….. 20
7
STATEMENT OF THE CASE
On September 4, 2014, Appellant was indicted on three different charges of
Delivery of a Controlled Substance – Enhanced. The three charges were alleged to
have occurred on May 29, 2014 (Cause #74207 CR1 at 5), May 15, 2014 (Cause
#74208 CR1 at 5) and May 8, 2014 (Cause #74209 CR1 at 5). On January 26,
2015, Appellant pled “guilty” in all three cases and pled “true” to the enhancement
paragraph in each case. (RR3 at 9 & 12). A punishment hearing then took place
before the trial court on January 28, 2015. (RR4 at 1). After considering the
evidence, the trial court sentenced Appellant to 45 years TDCJ-ID in each case.
(RR4 at 138). Notice of Appeal was then filed in each case the same day. (See
Cause #74207 CR1 at 26, Cause #74208 CR1 at 24, and Cause #74209 CR1 at 24).
STATEMENT OF FACTS
On January 26, 2015, Appellant was called to trial in cause #74207, 74208,
and 74209. (RR3 at 4). At that time, Appellant informed the trial court that he
wished to retain counsel to represent him. (RR3 at 6). Previously, Appellant was
appointed counsel to represent him at trial. (RR3 at 6-7). Appellant informed the
court as follows:
“I've been in jail for going on six months, ma'am, and my family, you
know, they really don't have too much money but just recently they --
they got a substantial amount of money to where they can be able to
8
hire me an attorney, Charles Adams. They're talking to him today.
They're having a confrontation[sic] with him today and I know for
sure that they're going to hire him and I just ask can I have a little bit
of time to where I get me a hired attorney on my case. I don't feel
comfortable going to trial with the court-appointed lawyer.” (RR3 at
6-7).
After hearing Appellant’s request, the trial denied the request, informed him that
jury selection was at 1:00, and remanded him back to Sheriff until that time. (RR3
at 7).
Later that same day, when the trial court reconvened, Appellant pled guilty
in each case. (RR3 at 9). The state then agreed to waive its right to a jury trial
regarding punishment in exchange for Appellant’s waiver of his right to a
Presentence Investigation Report. (RR3 at 10). Appellant also plead true the
enhancement paragraph in each case. (RR3 at 12). The range of punishment in
each case was not less than 15 years nor more than 99 years or life, and a fine of up
to $10,000. (RR3 at 14). The trial court also admonished Appellant of his rights
and he signed a written waiver. (RR3 at 13-14).
On January 28, 2015, a punishment hearing was held before the trial court.
(RR4 at 1). At punishment, the state first called Gregory Mitchell, a Patrol
Sergeant with Angleton Police Department. (RR4 at 7). Sergeant Mitchell testified
9
that on April 13, 2008, he responded to a robbery at the Time Out Food Store in
Angleton. (RR4 at 8-9). He located the Appellant one block from the store, but the
Appellant ran from him. (RR4 at 10-11). Sergeant Mitchell testified that he later
located the Appellant hiding in his grandparent’s attic and arrested him, but the
Appellant broke free and ran while being taken to the patrol car. (RR4 at 12).
Appellant was found about a week later in Houston. (RR4 at 12). On December 15,
2008, Appellant pled guilty to the offense of Aggravated Robbery and was
sentenced to 5 years TDCJ-ID. (RR5 at 22).
The state’s next witness was Kirk Coleman, a former investigator with the
Angleton Police Department. (RR4 at 15). He testified that Appellant used a stolen
rifle during the aggravated robbery and that the victim in that case had been
injured. (RR4 at 15-18).
The state’s third and final witness was Brazoria County Sheriff’s Office
Narcotics Investigator, Marcos Salinas. (RR4 at 20). He testified that, while
working undercover, he purchased methamphetamine from the Appellant on May
8th, May 15th, and May 29th, 2014. (RR4 at 21-32). Telephone recordings and
crime laboratory reports concerning each case along with two video recordings
were admitted into evidence. (RR4 at 23-33).
Salinas also testified that he had purchased what he believed to be
methamphetamine from the Appellant on June 8th in Houston, but the substance
10
tested negative for a controlled substance. (RR4 at 35-37). He also testified that he
met with the Appellant on July 18th to discuss selling cocaine to the Appellant.
(RR4 at 38). According to Salinas, the Appelant agreed to buy two kilograms of
cocaine for $26,000.00 each. (RR4 at 41). Salinas testified that he later spoke to
the Appellant by phone to confirm the deal. (RR4 at 42). Shortly thereafter, while
Salinas still had has recorder going, Appellant accidentally called Salina. (RR4 at
42). Salina referred to this call as a “butt dial.” (RR4 at 42). Apparently, after the
first conversation, the Appellant accidentally called Salinas’ phone, not intending
to speak with Salinas. (RR4 at 42). Salinas testified, at the time of the accidental
call, he “really couldn’t hear much.” (RR4 at 43). However, after he listened to the
audio recording, he could hear that the Appellant was speaking with an
unidentified woman. (RR4 at 43). Salinas said that the Appellant could be heard
talking to the female about killing them and stealing the cocaine. (RR4 at 44).
Salinas stated that the decision was then made to stop all transactions with the
Appellant and to arrest him. (RR4 at 44). State’s Exhibit 9, which contained the
audio recording of the Appellant’s conversation with the unidentified female, was
then admitted into evidence and played before the trial court over defense
counsel’s objection. (RR4 at 45-47). After Salinas finished testifying about the
recording, the state rested. (RR4 at 48).
The defense’s first witness was Appellant’s father, Rodney James. (RR4 at
11
56). He testified that Appellant’s mother died when Appellant was 16 and that the
Appellant had previous been incarcerated as a juvenile in TYC and in TDC for
Aggravated Robbery as an adult. (RR4 at 57-60). According to his father, after the
Appellant was released from TDC, he was a terrific kid. (RR4 at 60). He got a job
and helped take care of his grandmother. (RR4 at 60-61). He also expressed to the
trial court that Appellant was remorseful and had a high potential of being a
productive citizen. (RR4 at 63-64).
The next witness for the defense was the Appellant’s aunt, Angeline White.
(RR4 at 71). She also testified that the Appellant had a very good possibility of
being a productive person. (RR4 at 76).
The third witness for the defense was Booker Randon, a pastor at Galilee
Missionary Baptist Church. (RR4 at 81). Appellant had been a member of his
church. (RR4 at 81). He believed that the Appellant wanted to do what was right.
(RR4 at 84). The pastor had started a program called Men of Purpose to mentor
young men that were going in the wrong direction. (RR4 at 83). He believed that
he could make a difference in Appellant’s life and asked the court to consider less
time for the Appellant to give them the opportunity to be a part of his life. (RR4 at
86).
The last person to testify was the Appellant. (RR4 at 88). Before being
arrested, he lived back and forth between his father’s house and his grandmother’s
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house. (RR4 at 88). He helped take care of his grandmother. (RR4 at 89). He told
the court that he went into a depression after he injured his foot and could no
longer work and turned to the drug trade to provide for his family when he could
not get other work. (RR4 at 89-91). He also informed the court that he hosted a
prayer circle in his tank at the detention center. (RR4 at 95). He also apologized to
his family, indicated he now has empathy for others, realizes he should have done
things differently, has turned to the bible for guidance, and asked for forgiveness.
(RR4 at 96-99& 130).
Under cross-examination, Appellant denied stealing the rifle used in the
previous aggravated robbery, hitting the clerk with the rifle, or that the rifle was
loaded. (RR4 at 100-103). He did admit to hitting the clerk with his hand, stealing
about $1,000.00, running from the police, hiding in the attic, being arrested, and
running again. (RR4 at 103-104). While in prison, he also admitted to getting into
altercations with other inmates and with law enforcement. (RR4 at 109).
Appellant admitted to buying 7 grams of methamphetamine from his
suppler, JW, on two different occasions, diluting it with MSM, and selling it to the
undercover officer. (RR4 at 113-119). The last ounce that he sold to Salinas in
Harris County was all MSM. (RR4 at 120). Appellant also admitted to negotiating
to buy two kilograms of cocaine, but not having to money to pay for it. (RR4 at
120-121). However, he was unable to recall any conversation between him and an
13
unknown female previously testified to by Salinas. (RR4 at 123-128). He also
denied having a gun during any of the transactions with Salinas. (RR4 at 128).
The trial court then sentenced the Appellant to 45 years in each case and
informed him that his right to appeal would be limited to the punishment stage of
the trial since he had pled guilty. (RR4 at 138).
SUMMARY OF THE ARGUMENT
The trial court improperly limited Appellant’s right to appeal to the
punishment phase of the trial. Even though Appellant pled guilty, his plea was not
part of a plea bargain agreement and the state did not offer any consideration for
any possible waiver of Appellant’s right to appeal. The trial court also denied
Appellant the ability to hire counsel of his choosing and forced Appellant to
proceed to trial with court appointed counsel. In addition, the trial court improperly
admitted and considered as evidence against the Appellant a recording of a private
conversation between the Appellant and another person that was intercepted and
recorded by law enforcement using a cell phone. Finally, if trial counsel failed to
preserve that issue for appeal by failing to make a proper objection to the recording
at trial, the Appellant did not receive effective assistance of counsel.
APPELLANT'S POINT OF ERROR ONE
The trial court committed error by limiting Appellant’s right to appeal to
the punishment phase of the trial.
14
ARGUMENT
The trial court’s certification of defendant’s right to appeal states that
Appellant’s case “is not a plea-bargain case and the defendant has the right of
appeal punishment phase of trial.” The preprinted form states that this “is not a
plea bargain case and the defendant has the right to appeal.” However, the trial
court attempted to limited Appellant’s right to appeal by hand writing in that
Appellant’s right to appeal only applies to the “punishment stage of trial.” (See
#74207 CR1 at 27, #74208 CR1 at 28, and #74209 CR1 at 27). The trial court also
verbally admonished the Appellant that his right to appeal would be limited to the
punishment phase of trial, since he had pled guilty. (RR4 at 138). Appellant’s
written admonitions also contain the following statement: “Where your plea of
guilty or nolo contendere is voluntarily and understandingly entered without a plea
bargain agreement, the plea waives or forfeits the right to appeal a claim of error
pertaining to guilty only when the judgment of guilt was rendered independent of,
and is not supported by, the error claimed. (See #74207 CR1 at 22, #74208 CR1 at
20, and #74209 CR1 at 20).
It is well settled that a defendant in any criminal action has the right of
appeal. Tex. Code Crim. Proc. art 44.02. A defendant in a criminal action may also
waive any rights secured him by law. Tex. Code Crim. Proc. art. 1.14. In addition,
a waiver of the right to appeal that is made voluntarily, knowingly, and intelligently
15
will prevent a defendant from appealing without the consent of the trial court.
Monreal v. State, 99 S.W.3d 615, 617 (Tex.Crim.App. 2003). However, when a
defendant waives his right to appeal before he knows what his punishment would
be, the waiver is ineffective. Sims v. State, 326 S.W.3d 707, 710 (Tex.App.-
Texarkana 2010, pet. struck), See Ex parte Delaney, 207 S.W.3d 794, 797
(Tex.Crim.App. 2006); Blanco v. State, 18 S.W.3d 218, 219–20 (Tex.Crim.App.
2000). The only way a defendant can knowingly and intelligently waive his right to
appeal as part of a plea, when sentencing is not agreed upon, is where some
consideration is given by the state for that waiver. Ex Parte Broadway, 301 S.W.3d
694, 699 (Tex.Crim.App 2009).
In this case, the state offered nothing in exchange for the defendant’s plea of
guilty. Therefore, the defendant did not voluntarily, knowingly, or intelligently
waive his right to appeal and the trial court committed error by attempting to limit
Appellant’s right to appeal to the punishment phase of the trial. Therefore,
Appellant’s appeal should be fully before the appellate court and the court should
not limit the scope of the appeal as suggested by the trial court’s addendum to the
certification. See Sims v. State, 326 S.W.3d 707, 711 (Tex.App.-Texarkana 2010).
APPELLANT'S POINT OF ERROR TWO
The trial court committed error by denying Appellant his right to counsel
of his choosing.
16
ARGUMENT
The right to select counsel of one’s choosing is considered the core meaning
of the Sixth Amendment’s guarantee of right to counsel. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct 2557, 2563 (2006). A trial court’s
erroneous deprivation of this right is structural error, not subject to harmless-error
analysis and requires automatic reversal on appeal. Id. at 2564-66. Both Federal
and Texas Constitutions, as well as Texas statute, guarantee a defendant in a
criminal proceeding the right to have assistance of counsel. Gonzales v. State, 117
S.W.3d 831, 836 (Tex.Crim.App. 2003). The right to assistance of counsel also
contemplates the defendant’s right to obtain assistance from counsel of the
defendant’s choosing. Id. at 836-87. However, the defendant’s right to counsel of
choice is not absolute. Id. at 837. A defendant does not have a right to an advocate
who is not a member of the bar, an attorney he cannot afford, attorney who
declines to represent him, or an attorney who has a relationship with an opposing
party. Id. Additionally, while there is a strong presumption in favor of a defendant’s
right to retain counsel of his choosing, the presumption may be overridden by other
important considerations relating to the integrity of the judicial process and the fair
and orderly administration of justice. Id. However, when a trial court unreasonably
or arbitrarily interferes with the defendant’s right to choose counsel, its actions rise
to the level of a constitutional violation. Id. Therefore, while a defendant in a
17
criminal case may not switch counsel at the last minute or do anything to
manipulate or delay the trial through his choice of counsel, he otherwise has an
absolute right to choose his own attorney. Jones v. State, 926 S.W.2d 386, 390
(Tex.App.-Fort Worth 1996, pet. ref’d.)
In this case, the Appellant did not attempt to manipulate or unreasonably
delay the trial proceedings by requesting time to hire counsel of his choosing.
There is nothing in the record to suggest that this was anything other than
Appellant’s first trial setting. The Appellant informed the trial court that his family
had recently acquired a substantial amount of money that would enable him to hire
counsel of his choosing instead of relying upon court appointed counsel to
represent him. His family was to meet with the attorney “today” and that he did not
feel comfortable going to trial with his present attorney. He only asked the trial
court for “little bit of time” to hire an attorney. However, his request was
unreasonably and arbitrarily denied by the trial court, thereby denying Appellant of
his right to counsel of his choosing.
APPELLANT'S POINT OF ERROR THREE
The trial court committed error by failing to sustain Appellant’s objection
to the admission of an audio recording and by considering the audio recording
as evidence against the Appellant at the punishment phase of the trial.
ARGUMENT
18
At trial, Salinas was allowed to testify about the contents of a conversation
between the Appellant and an unknown female that was electronically intercepted
and recorded using a cellular phone and a recording device. (RR4 at 42-47). At the
time of the call, Salinas attempted to eavesdrop on Appellant’s private
conversation, but he was unable to hear the contents of the conversation until he
played back the audio recording. (RR4 at 43). It is clear from the record that the
Appellant never intended to call Salinas and that the contents of his conversation
with the unknown female were intended to be private. (RR4 at 42-43). Apparently,
Appellant accidently called Salinas’ phone not intending to speak with Salinas.
(RR4 at 42). Salinas then recorded a conversation between Appellant and an
unknown female. (RR4 at 42). Salinas testified before the trial court that Appellant
could be overheard on the recording talking to the female about killing them and
stealing the cocaine. (RR4 at 44).
At trial, defense counsel objected to State’s Exhibit 9, a recording of the
conversation, by stating: “We would object to State's Exhibit No. 9. One, on
predicate, that he has no personal knowledge. This was, by his own admission, an
accidental phone call that was intercepted, similar to someone eavesdropping on a
private conversation; and under 403 we would also state that the probative value --
or the value is more probative than the prejudicial effect.” (RR4 at 45).
An appellate court’s review of a trial court’s admission of evidence is for
19
abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.
2000), Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).
Texas Rule of Evidence 901 governs the admission of electronic recordings.
See Angleton v. State, 971 S.W.2d 65 (Tex.Crim.App. 1998). Rule 901 provides in
part:
(a) In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent
claims it is.
(b) Examples. The following are examples only--not a complete list--
of evidence that satisfies the requirement:
(1) Testimony of a Witness with Knowledge. Testimony that an item is
what it is claimed to be….
(4) Distinctive Characteristics and the Like. The appearance, contents,
substance, internal patterns, or other distinctive characteristics of the
item, taken together with all the circumstances…..
(5) Opinion About a Voice. An opinion identifying a person’s voice--
whether heard firsthand or through mechanical or electronic
transmission or recording--based on hearing the voice at any time
under circumstances that connect it with the alleged speaker……
20
(6) Evidence About a Telephone Conversation. For a telephone
conversation, evidence that a call was made to the number assigned at
the time to:
(A) a particular person, if circumstances, including self-identification,
show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the
call related to business reasonably transacted over the telephone.
Under Rule 901, “a witness is no longer required to be the maker of the
recording or have otherwise participated in the conversation in order for his
testimony that the recording is what it is claimed to be to sufficiently authenticate
it.” Hines v. State, 383 S.W.3d 615, 625 (Tex.App.-San Antonio 2012, pet ref’d.),
citing Angleton v. State, 971 S.W.2d 65, 69 (Tex.Crim.App.1998). It is also not
necessary for a witness to identify both voices to establish that a digital recording
is what the state claimed it to be. Banargent v. State, 228 S.W.3d 393, 410
(Tex.App- Houston [14th Dist.] 2007, pet. ref’d.) Therefore, defense counsel’s
objections as to predicate and no personal knowledge appear to be without merit.
However, defense counsel also objected that this was an intercepted phone
call and amounted to eavesdropping on Appellant’s private conversation.
Eavesdropping, which is defined as the listing under walls, windows or eaves of
houses to uncover slanderous tales, was an indictable offense at common law and
21
wiretapping is nothing more than eavesdropping by telephone. Billings v. Atkinson,
489 S.W.2d 858, 860 (Tex.S.Ct. 1973). Texas Penal Code section 16.02 provides
in part that:
(b) A person commits an offense if the person:
(1) intentionally intercepts … a wire, oral, or electronic
communication; …
(4) knowingly or intentionally effects a covert entry for the purpose of
intercepting wire, oral, or electronic communications without court
order or authorization; or …
(5) intentionally uses … any electronic, mechanical, or other device to
intercept any oral communication when the device:
(A) is affixed to, or otherwise transmits a signal through a wire, cable,
or other connection used in wire communications; …
In addition, Texas Code of Criminal Procedure article 18.02 provides that the
contents of any recording obtained in violation of Texas Penal Code, section 16.02,
may not be received into evidence in any trial.
Appellant further asserts that the audio recording of Appellant’s private
conversation was obtained in violation of his rights under the Fourth Amendment.
U.S. Const. amend. IV. The Fourth Amendment serves to safeguard an individual's
privacy from unreasonable governmental intrusions. Richardson v. State, 865
22
S.W.2d 944, 948 (Tex.Crim.App.1993). A defendant may challenge the admission
of evidence obtained by governmental intrusion only if he had a legitimate
expectation of privacy in the place invaded. Rakas v. Illinois, 439 U.S. 128, 143, 99
S. Ct. 421, 58 L. Ed. 2d 387 (1978). To determine whether a person had a reasonable
expectation of privacy, it must be determined whether the person exhibited a
subjective expectation of privacy and whether that subjective expectation is one
that society is prepared to recognize as reasonable. Smith v. Maryland, 442 U.S.
735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). A two-pronged test is used to
determine if a person had a reasonable expectation of privacy: (1) whether the
person's conduct exhibited a subjective expectation of privacy, and (2) whether the
person's subjective expectation of privacy is one that society is willing to recognize
as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577 (1979) (citing
Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507 (1967); Villarreal v. State,
935 S.W.2d 134, 138 (Tex.Crim.App.1996).
In this case, Appellant had a reasonable expectation of privacy in a private
conversation with another individual without governmental eavesdropping and
recording of that conversation in violation of the Fourth Amendment. In addition,
the contents of the conversation were transmitted over a cellular telephone signal
and intercepted and recorded by law enforcement in violation of Texas Penal Code
section 16.02 and should not have been allowed into evidence pursuant to Texas
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Code of Criminal Procedure article 18.02. Therefore, under the circumstances of
this case, the trial court abused its discretion by admitting the audio recording over
Appellant’s objection.
Additionally, the error in this case cannot be considered harmless. The
contents of the recording were extremely harmful and prejudicial to the Appellant.
Not only did Salinas testify to the content of the recording, the recording was also
played for the trial court and the state emphasized the importance of the recording
it its closing argument. (See RR4 at 44, 47 & 133). The trial court also listened to
the recordings again and considered them when make its ruling. (See RR4 at 135).
It is easy to conclude that, but for the admission of the intercepted conversation,
Appellant’s sentence would have been considerably less.
APPELLANT'S POINT OF ERROR FOUR
Appellant did not receive effective assistance of counsel at trial.
ARGUMENT
If the Court overrules Appellant’s third point of error because defense
counsel failed to properly object at trial and preserve the error for appeal, then
Appellant did not receive effective assistance of counsel at trial.
A defendant in a criminal trial has the right to effective assistance of
counsel. U.S Const. Amends. VI and XIV; Tex. Const. art. I, sec 10; Powell v.
Alabama, 287 U.S. 45, 66 (1932). Trial counsel must act within the range of
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competence demanded of attorneys in criminal cases. McMann v. Richardson, 397
U.S. 759, 771 (1970). The same standards apply in evaluating the representation of
retained and appointed counsel. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). The
effectiveness of counsel is ordinarily gauged by the totality of the representation,
but even a single error can constitute ineffective assistance of counsel. Ex parte
Felton, 815 S.W.2d 733, 736 (Tex.Crim.App. 1991). In addition, a defendant in a
criminal trial does not need to object at trial to counsel’s ineffective representation
to preserve the issue for appeal. Robinson v. State, 16 S.W.3d 808, 813
(Tex.Crim.App. 2000).
In order to have a conviction reversed on appeal, an appellant must show
that trial counsel’s performance was deficient and that the deficient performance
resulted in prejudice to the defendant by depriving him of a fair trial with reliable
results. Strickland v. Washington, 466 U.S. 668, 687 (1984). The appellate court
must judge trial counsel’s conduct based upon the particular facts of each case. Id.
at 690. The appellant must show that trial counsel’s representation fell below an
objective standard of reasonableness. Id. at 688. In determining ineffective
assistance of counsel, the appellant must identify acts or omissions by trial counsel
that were not the results of reasonable professional judgment and were outside the
range of professionally competent assistance. Id. at 690. Ultimately, the appellant
must show a reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different. Id. at 694. Reasonable
probability is a probability sufficient to undermine the confidence in the outcome.
Id. The standards announced in Strickland also apply to criminal cases in Texas.
See Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986).
In this case, if trial counsel failed to make a proper objection at trial
regarding the admission of the audio recording as discussed in Appellant’s third
point of error, then trial counsel’s performance was deficient and that deficiency
resulted in prejudice to the Appellant. Failing to properly object to the audio
recording cannot be considered the result of reasonable professional judgment.
Given the content of the recording, there is a reasonable probability that the trial
court’s judgment was sufficiently affected by the recording as to sufficiently
undermine the confidence in the outcome. It is reasonable to conclude that, but for
the admission of the audio recording, Appellant’s sentence would have been less.
CONCLUSION
The trial court improperly limited Appellant’s right to appeal to the
punishment phase of the trial. The trial court also denied Appellant the ability to
hire counsel of his choosing and forced him to proceed to trial with court appointed
counsel. In addition, the trial court improperly admitted and considered a recording
of a private conversation between the Appellant and another person that was
intercepted and recorded by law enforcement using a cell phone. Finally, if trial
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counsel failed to properly preserve that issue for appeal, the Appellant did not
receive effective assistance of counsel.
PRAYER
WHEREFORE, Appellant prays that his points of error be sustained and that
the judgment of conviction be reversed.
Respectfully submitted,
/s/ Keith G. Allen
Keith G. Allen
Attorney for Appellant
Law Offices of Keith G. Allen, PLLC
2360 CR 94, Suite 106
Pearland, TX 77584
Telephone: 832-230-0075
Fax: 832-413-5896
Keith@KGAllenLaw.com
Bar No. 01043550
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to TRAP 9.4(i) that the preceding document
contains 5,455 words as determined by the word count of the computer program
used to prepare this document.
/s/ Keith G. Allen
Keith G. Allen
CERTIFICATE OF SERVICE
This is to certify that on July 9, 2015 a true and correct copy of the above
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and foregoing document was served on Jeri Yenne, Brazoria County District
Attorney, 111 E. Locust #408A, Angleton, Texas 77515 pursuant to TRAP 9.5.
/s/ Keith G. Allen
Keith G. Allen
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